P L D 2000 Supreme Court 820 (PLP)

(On appeal from the order dated 1‑7‑1999 passed by Lahore High Court, Lahore in Civil Revision No.3319 of 1994 in C.M. 735 of 1996). (a) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑Ss. 115 & 151‑‑‑Limitation Act (IX of 1908), Art.181‑‑‑Revision‑‑ Object‑‑‑Dismissal of revision after admission for non‑prosecution ‑‑ Legality‑‑‑Procedure‑‑‑No provision for recalling/setting aside the order dismissing a revision for non‑prosecution having been provided, to overcome such situation inherent jurisdiction of the Court could be invoked which .had been conferred upon trial, appellate and revisional Courts in terms of S.151, C.P.C. subject to the condition that no other specific provision to deal with the issue was available under Civil Procedure Code, 1908‑‑‑No limitation having been prescribed for filing an application to invoke Jurisdiction of the Court under 5.151, C.P.C. in the Limitation Act, 1908 or S.48, C.P.C. residuary provision of Art.181, Limitation Act, 1908, would be attracted which provide period of three years for the purpose‑‑‑Principles. Dismissal of a civil revision after its admission by the Court seized with it for non‑prosecution is not legally well‑recognized for the reason that jurisdiction of a revisional Court under section 115, C.P.C. is invoked by an aggrieved person to point out illegalities or irregularities or the jurisdictional defects in the proceedings and the orders passed by the subordinate forums. Therefore, on entertaining a revision petition; Court exercises its supervisory jurisdiction to satisfy itself as to whether jurisdiction has been exercised properly and whether proceedings of the subordinate Courts do suffer or not from any illegality or irregularity. In other words, after filing a revision, matter rests between the revisional and subordinate Courts. Court after having entertained a civil revision instead of dismissing it in default, may make efforts to dispose it of in accordance with the parameters laid down by section 115, C.P.C. There is no doubt that civil revision under section 115, C.P.C. entertained by the High Court has to be disposed of in view of provisions of section 117, C.P.C. a thorough survey of C.P.C. will indicate that there is no provision for recalling/setting aside the order dismissing a revision for non‑prosecution: There are many other proceedings under C.P.C. in respect of which no procedure has been laid down if the same is dismissed for non ‑prosecution. But a litigant suffering from such difficulty, cannot be left without any remedy because law favours adjudication of matters on merits unless there exists some insurperable practical obstacle. Therefore, to overcome such situation inherent jurisdiction of the Court can be invoked which has been conferred upon trial, appellate and revisional Courts in terms of section 151, C.P.C. However, subject to the condition that no other specific provision to deal with the issue is available under C.P.C. There is no specific provision in Civil Procedure Code to restore a revision dismissed for non‑prosecution, therefore, an aggrieved party can claim relief under section 151, C.P.C. For filing of an application to invoke inherent jurisdiction of Court no limitation has been prescribed under a particular Article of Limitation Act. Therefore, the application so filed shall be governed by residuary provision i.e. Article 181 of Limitation Act, according to which application for which no period of limitation is provided elsewhere in the Schedule or section 48 of Code of Civil Procedure, prescribed time limit shall be three years when the right to sue accrues. In the present case application under Order. IX, Rule 9, C.P.C. being not competent High Court had to treat same as an application under section 151, C.P.C. As the application was filed within the prescribed period of three years, therefore, it was not obligatory upon the respondents to have explained the delay of each day. Mirza Muhammad Saeed v. Sahabud Din and 8 others PLD 1983 SC‑385; Naoomal Tourmal v. Tarachand Sobharaj and another AIR 1933 Sindh 200; Bharat Chandra Nath and another v. Iasin Sarkar (1916‑17) 21 CWN 769; Sourendra Nath Mister v. Jatindra Nath Ghose 32 CWN 811; Syed Qasim Shah v. Deputy Commissioner, Kachhi District and another PLD 1976 Quetta 42; Wali and others v. Manak and others PLD 1965 SC 651; Mrs. Mehr Sultan Jung v. Qurban Hussain 1972 SCMR 73 and House Building Finance Corporation v Mrs. Sarwar Jehan PLD 1992 Kar 329 ref. (b) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑Ss. 115 & 151‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Exercise of inherent jurisdiction by High Court‑ under S.151, C.P.C. in condoning the delay in filing revision and accepting the statement of facts for non appearance in Court‑‑‑Supreme Court declined interference in the discretionary relief granted by High Court, for Supreme :Court interfered under Art. 185(3) of the Constitution where grave injustice had been caused‑‑‑Principles. In the present case High Court had exercised its inherent jurisdiction in condoning the delay and accepted statement of facts for not appearing in Court. Therefore, Supreme Court was not bound to interfere in the discretionary 'relief because Supreme Court was not exercising jurisdiction of Appellate Court. However, interference is made under Article 185(3) of the Constitution of Islamic Republic of Pakistan by Supreme Court where grave injustice has been caused. Jamshed Ahmad v. Muhammad Akram Khan and another 1975 SCMR 149 ref. ORDER IFTIKHAR MUHAMMAD CHAUDHARY, J.‑‑In the instant petition leave has been prayed to file appeal against order dated July 1, 1999 passed by Lahore High Court whereby Civil Revision No.3319 of 1994 was re‑admitted while accepting C.M. No.735 of 1996 filed by respondents.

2. Briefly stating facts for disposal of instant petition are that Civil Revision referred to hereinabove was dismissed for non‑prosecution on May 29, 1995 by the Lahore High Court, Lahore. Civil Miscellaneous Application number of which, too; has been mentioned hereinabove was filed on November 16, 1996 for recalling/setting aside the order of dismissal of revision petition for its restoration and decision on merits. Title of application reveals that relief was claimed by invoking provisions of Order IX, Rule 9 read with section 151, C.P.C. The application was contested by the petitioner inter alia on the ground that request to recall/set aside the order of dismissing revision petition has been filed beyond the period of limitation and no explanation of each day has been offered. In addition to it, sufficient grounds have also not been disclosed for seeking indulgence of the Court.

3. Learned Single Judge vide impugned order accepted the application and restored the revision. Concluding para. from the order reads as under:‑‑

4. Mr. Malik Amjad Pervez, Advocate strenuously argued that petition was barred by time as according to him Article 169 of Limitation Act has prescribed 30 days for restoration of revision petition. He was also of the opinion that delay. in ‑filing of the application has also not been explained with cogent reasons, therefore, indulgence was not warranted by the High Court. His further argument was that the reasons shown' in the application for not approaching the Court promptly because of getting no information from the counsel itself is no ground to restore the revision and in the case where an Advocate has been found negligent in discharging his duties and a litigant can sue him in tort as has been‑held in Mirza Muhammad Saeed v. Sahab‑ud‑Din and 8 others PLD 1983 SC 385.

5. At the very outset it may be observed that dismissal of a civil revision after its admission by the Court seized with it for non‑prosecution is not legally well‑recognized for the reason that jurisdiction of a revisional Court under section 115, C.P.C. is invoked by an aggrieved person to point out illegalities or irregularities or the jurisdictional defects in the proceedings and the orders passed by the subordinate forums. Therefore, on entertaining a revision petition, Court exercises its supervisory jurisdiction to satisfy itself as to whether jurisdiction has begin exercised properly and whether proceedings of the subordinate Courts do suffer or not from any illegality or irregularity. In other words, after filing a revision, matter rests between the revisional and subordinate Courts. To substantiate this argument reference may be made to Naoomal Tourmal v. Tarachand Sobharaj and another AIR I 1933 Sindh

200. Thus is advised that the Court after having entertained a civil revision instead of dismissing it in default, may make efforts to dispose it of in accordance with the parameters laid down by section 115, C.P.C.

6. There is no doubt that civil revision under section 115, C.P.C. entertained by the High Court has to be disposed of in view of provisions of section 117, C.P.C. A thorough survey of C.P.C. will indicate that there is no provision for recalling/setting aside the order dismissing a revision for non‑prosecution. It may be noted that there are many other proceedings under C.P.C. in respect of which no procedure has been laid down if the same is dismissed for non‑prosecution.. Reference in this behalf may be made to the cases of (i) Bharat Chandra Nath and another v. Lasin Sarkar (Calcutta Weekly Notes) Vol. XXI 1916‑17 page 769, (ii) Sourendra Nath Mitter v. Jatindra Nath Ghose (Calcutta Weekly Notes) Vol. 32, page 811 and (iii) Syed Qasim Shah v. Deputy Commissioner, Kachhi District and another PLD 1976 Quetta

42. But a litigant suffering from such difficulty cannot be left without any remedy because law favours adjudication of matters on merits unless there exists some insurperable practical obstacle as held by this Court in the case of Wali and others v. Manak and others PLD 1965 SC

651. Therefore, to overcome such situation inherent jurisdiction of the Court can be invoked which has been conferred upon trial, appellate and revisional Courts in terms of section 151, C.P.C. However, subject to the condition that no other specific provision to deal with the issue is available under C.P.C. Reference. may be made to the case of Mrs. Mehr Sultan Jung v. Qurban Hussain 1972 SCMR 73.

7. As it has been observed hereinabove that there is no specific provision in Civil Procedure Code to restore a revision dismissed for non‑prosecution, therefore, an aggrieved party can claim relief under section 151, C.P.C. In this regard reference may be made to House Building Finance Corporation v. Mrs. Sarwar Jehan PLD 1992 Karachi 329.

8. In continuation of above conclusion it is to be observed that for filing of an application to invoke inherent jurisdiction of Court no limitation has been prescribed under a particular Article of Limitation Act. Therefore the application so filed shall be governed by residuary provision i.e. Article 181 of Limitation Act, according to which application for which no period of limitation is provided elsewhere in the Schedule or section 48 of Code of Civil Procedure, prescribed time limit shall be three years when the right to sue accrues.

9. Because in the case in hand application dated November 16, 1996 was not competent under Order IX, Rule 9,. C.P.C., therefore, learned High Court had to treat it as an application under section 151, C.P.C. As the same was filed within the prescribed period of three years, therefore, it was not obligatory upon the respondents to have explained the delay of each day.

10. Above question can also be looked from another angle namely the learned High' Court has exercised its inherent jurisdiction in condoning the delay and accepted statement of facts on behalf of respondents for not appearing in Court. Therefore, this Court is not bound to interfere in the discretionary relief because this Court is not exercising jurisdiction of Appellate Court. However, interference is made under Article 185(3) of the Constitution of Islamic Republic of Pakistan by this Supreme Court where grave injustice has been caused. Reference in this behalf may be made to Jamshed Ahmad v. Muhammad Akram Khan and another 1975 SCMR 149.

11. The judgment cited by the learned counsel is inapt for the foregoing reasons, therefore, need not to be discussed in detail. Nor his argument that Article 169 of the Limitation Act will govern such cases is acceptable. Thus, above discussion persuades us to dismiss the petition as it has no merits. However, before parting with the judgment we would like to leave a note that learned High Court may make efforts to dispose of the revision petition pending before it from 1994 expeditiously. Leave to appeal is refused. M.B.A./M‑53/S Petition dismissed.